Starbucks, LA Fitness and the long, racist history of America’s loitering laws

In January 1959, Sam Thompson entered the Liberty End Cafe in Louisville. While he waited to catch a bus nearby, he ordered macaroni and a beer and shuffled his feet to the music. Two police officers entered the bar and arrested Thompson for loitering. In short order, the local police court convicted Thompson, and not for the first time. Thompson had been arrested and convicted of loitering, vagrancy and other petty crimes more than 50 times, in part because he was poor and in part because he was black.

Some of the particulars may be different, but the arrest of two African American men at a Philadelphia Starbucks last week is a stark reminder that discriminatory policing continues to be very much with us. The men were waiting for a friend at the coffee shop when a manager called police on the complaint that they were loitering without making a purchase. And then, at an L.A. Fitness gym in New Jersey this week, a manager called police on two other black men after questioning their right to be there, even though one was a longtime member of the facility and the other had a guest pass.

Almost 60 years after Thompson’s arrest, black men still can be arrested for nothing more than being black and seeming out of place.

The Starbucks incident recalls the entire structure of policing that had made Thompson’s arrest possible, a system that gave officers discretion not only to protect citizens from criminality but also to enforce racial norms. At the time of Thompson’s arrest, vagrancy and loitering had been crimes in every American jurisdiction for centuries.

These laws criminalized being idle, poor, immoral and dissolute, wandering about with no apparent purpose, being a habitual loafer or disorderly person and more. Where most American laws required people to do something criminal before they could be arrested, vagrancy laws made it criminal simply to be a certain type of person.

The breadth and vagueness of these laws allowed law enforcement officers to arrest anyone for any reason, especially if they seemed out of place in some way — like racial minorities, Communists and Vietnam War protesters, prostitutes, single women, sexual minorities and hippies. The police used these laws to keep a vast array of people in certain places and out of others, to deny their freedom, and to exclude them from political power, social life and cultural acceptance. A person could be arrested for sporting a beard, making a speech, working too little or simply being a black man in the wrong place.

Protesters gather outside the Starbucks in Philadelphia where two black men were arrested. (Michael Bryant/The Philadelphia Inquirer/AP)

Vagrancy laws essentially provided a roving license to arrest, and that license was often used in discriminatory fashion.

Shuffling Sam — as he became known — was lucky in one sense: He knew someone connected with the then-fledging Kentucky ACLU, a former Supreme Court clerk and prominent local attorney who brought his case to the Supreme Court. Breaking new ground in the criminal law, the court determined that the lack of evidence for Sam Thompson’s loitering arrest had violated his due process rights. It overturned his conviction.

But the vagrancy and loitering laws remained.

Then came the Supreme Court’s pivotal 1972 case Papachristou v. City of Jacksonville, which showcased the racial discrimination that vagrancy laws licensed. It involved the arrest of two African American men and two white women for no reason other than that they were out together for a night on the town in Jacksonville, Fla. That the Florida vagrancy law could be used to arrest such people meant, as the court determined, that the law was impermissibly vague and that it failed to cabin police discretion.

After Papachristou, with vagrancy laws no longer available, law enforcement has turned to other laws, like disorderly conduct and trespassing, to similar ends. Police discretion that was lodged so firmly in vagrancy and loitering laws has continued in myriad policing practices, including most prominently stop and frisk. So long as discrimination exists in our society, it will find outlets in policing as elsewhere.

The Starbucks incident does suggest progress from Thompson’s time. In this case, other patrons defended the men. The video of their arrest went viral, and the charges were dropped. Starbucks’s chief executive apologized, the offending employee is no longer with the company and Starbucks will close all its stores for a partial day to institute racial sensitivity training. The employees involved in the LA Fitness incident also no longer work for that company.

Courts and legislatures, however, have been slow to address the full panoply of discriminatory policing practices. Vagrancy laws are gone, but treating African Americans like vagrants continues. A Washington Post report noted that blacks are stopped disproportionately in the Philadelphia neighborhood in which the Starbucks incident occurred: While they make up 3 percent of the area’s residents, they account for 67 percent of pedestrian police stops — delivering an implicit message that they are unwanted and unwelcome in the mostly white neighborhood.

It turns out that vagrancy laws are not the only thing that can keep people in the places others prescribe for them.

The dismantling of the vagrancy law system was necessary for ending Jim Crow and for advancing all the social movements for equality of the time. To be protected from arbitrary arrest was and is a precondition for full citizenship. In the 1960s, that meant the elimination of the most egregious, status-based laws. But that was always only a first step. The elimination of discriminatory police discretion, and the deeply entrenched racism that underlies it, was always going to be a lengthy and difficult process. That process began long before the incident at the Philadelphia Starbucks, but the goal of equal citizenship has yet to be achieved.

Risa L. GoluboffRisa L. Goluboff is dean of the University of Virginia School of Law and author of "Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s." She is a legal historian with a focus on American constitutional and civil rights law.

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